Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether The Carnegie Center for Literacy and Learning's (Carnegie Center) partial denial of Aaron L. Wilson's June 22, 2006, request for e-mails "naming and/or pertaining to Aaron L. Wilson, AmeriCorps*VISTA Member" sent to and from ewebb@carnegieliteracy.org., "to any user whose email address contains the domain "@cns.gov", including, but not limited to Dale Tucker, Betsy Wells, and Delois Mitchell." In addition, to the above, Mr. Wilson requested that the Carnegie Center adopt rules and regulations which conform to the Open Records Act, and display them in a prominent location which is accessible to the public. He noted that he had not seen them during his previous visits.
By letter dated June 27, 2006, Rachel B. Nobel, Official Records Custodian, partially denied a portion of Mr. Wilson's request, advising:
The request for all e-mails between Emily Webb and the CNCS State Office is denied in part because it places an unreasonable burden on the Carnegie Center. E-mails readily accessible have been provided but there is a large volume and compiling all you have requested would require innumerable employee hours and place an unreasonable burden on the Carnegie Center.
Shortly thereafter, Mr. Wilson initiated the instant appeal. In his letter of appeal, he asserted:
The Executive Director claims that the request for emails would place an unreasonable burden on the staff. I do not agree because she has neither quantified the "large volume" nor has she expressly stated the number of emails which are responsive to my request. Furthermore, the records I request to inspect pertain to me as a public agency employee, and, therefore, pursuant to K.R.S. 61.878, I am entitled to inspect these emails. Moreover, as I only made application for employment in late winter -- and began employment on April 17 -- these would date back only to February 2006.
After receipt of notification of the appeal, Terry Sellars, counsel for the Carnegie Center, provided this office with a supplemental response to the issues raised in the appeal. First, he stated that the requested e-mails were exempt from disclosure under KRS 61.878(1)(i) and (j). He further advised:
Second, although the requested e-mails were exempt from public inspection, the Carnegie Center nevertheless offered to make all readily accessible e-mails available for Mr. Wilson's inspection. To clarify Rachel Noble's June 27, 2006 response to Mr. Wilson's records request, inspection was denied only for deleted e-mails. Attempting to retrieve deleted e-mails would require innumerable employee hours and place an unreasonable burden on the Carnegie Center. With the exception of deleted e-mails, the Carnegie Center has offered to allow Mr. Wilson to inspect all of the documents he has requested.
In a reply to Mr. Sellars' response, Mr. Wilson asserted, in relevant part, that the Carnegie Center does not indicate when the e-mails at issue were deleted nor the volume of e-mails deleted. He further asserted that the Carnegie Center does not indicate its policy regarding deleted e-mails, such as how long they have to retrieve them and pointed out that the agency's response does not indicate that the deleted e-mails are irretrievable, and because the volume is not disclosed, the agency has not proved an unreasonable burden exists.
Pursuant to KRS 61.880(2)(c), we asked the Carnegie Center to provide additional information and documentation to the issues raised in the appeal. In response to questions concerning what search methods were used, what backup files were maintained, and a description of the recovery process utilized to recover the deleted e-mails, Mr. Sellars advised:
This letter is in response to your request for additional information in your letter of July 28, 2006. Since receiving your letter, the Carnegie Center has made every effort to retrieve the e-mails requested by Mr. Wilson and two additional e-mails have been retrieved and are attached. While we believe all of the e-mails are exempt from inspection as preliminary notes that did not constitute official action of the Carnegie Center, we nevertheless had no objection to Mr. Wilson inspecting the e-mails if they could be recovered. At one point we thought Carnegie's internet provider had the ability to retrieve the requested e-mails, but we have since learned it cannot. The numbered paragraphs below correspond to the numbered paragraphs in your letter.
When Noble's search was unproductive she contacted qx.net which recently bought out the Carnegie Center's former internet provider WIN.net to determine if it could assist in retrieving deleted e-mails and was told backup files are not stored for over 24 hours and there was no record of any deleted emails that could be retrieved. Qx.net can be contacted to confirm this at 333 W. Vine Street, Lexington, KY (859) 255-1928.
We first address the adequacy of the Carnegie Center's search for e-mails responsive to Mr. Wilson's request and the measures taken to recover the deleted e-mails. Whether the methodology the Carnegie Center used constituted an adequate search turns on the standard established in 95-ORD-96. At page 7 of that decision, this office observed:
[T]he Open Records Act does not require an agency to conduct "an exhaustive exhumation of records ," Cerveny v. Central Intelligence Agency, 445 F. Supp. 772, 775 (D. Col. 1978), or to embark on an unproductive fishing expedition "when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight ." In re Agent Orange Product Liability Litigation, 98 F.R.D. 522, 529 (E.D. N.Y. 1983). It is, however, incumbent on an agency "to make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." Cerveny, supra at 775. Thus, the agency must expend reasonable efforts to identify and locate the requested records. And, if the documents do exist, and the public agency cannot locate them, the agency's "good faith [sh]ould not be impugned unless there was some reason to believe that the supposed documents could be located without an unreasonably burdensome search." Goland v. Central Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1979). In assessing the adequacy of an agency search, we "need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith." Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977).
Applying the search standard articulated in 95-ORD-96 to the e-mail at issue in the instant appeal, we find that the Carnegie Center conducted a search using methods that could reasonably be expected to produce the requested records. In its June 27, 2006, response, the Carnegie Center advised Mr. Wilson that responsive e-mails that were readily accessible were available for his inspection, but denied his request in part stating that to compile all e-mails responsive to his request would place an unreasonable burden on the Carnegie Center. In its July 12, 2006, supplemental response, the Carnegie Center clarified that inspection was denied only for deleted e-mails and attempting to retrieve deleted e-mails would require innumerable employee hours and place an unreasonable burden on the agency.
Pursuant to KRS 61.880(2)(c), we asked the Carnegie Center, among other things, to describe the methods used to locate e-mails responsive to Mr. Wilson's request; whether backup files were maintained; whether searches had been made using any information recovery backup; to describe the recovery process that would be needed to recover the deleted e-mails; and to provided copies of any policies or guidelines dealing with the management, retention and deletion of e-mail by Carnegie Center employees. In response to our request, the Carnegie Center explained that it had made every effort to retrieve the e-mails requested by Mr. Wilson and, in fact, retrieved two additional deleted e-mails. In explaining the methods used in searching for and efforts to retrieve the deleted e-mails, the Carnegie Center Director, Rachel Noble, requested that Emily Webb provide all e-mails between Ms. Webb's e-mail address and the CNCS State Office pertaining to Mr. Wilson. In addition, the Carnegie Center stated that Ms. Noble searched through Ms. Webb's e-mail management program for all folders including e-mails labeled state office, all folders with stored e-mails during the time Mr. Wilson served as a Vista member, all sent e-mails on the computer, all e-mails addresses named in Mr. Wilson's open records request, and all deleted e-mails not fully erased. This was a search method that could reasonably be expected to produce responsive e-mails.
Having failed to retrieve other deleted e-mails, the Carnegie Center contacted its internet service provider, Qx.net, to see if it could assist in retrieving the deleted e-mails, but was advised that backup files are not stored for over 24 hours and there was no record of any deleted e-mails that could be retrieved. The undersigned contacted Qx.net and they confirmed this fact. The Carnegie Center further explained that it does not have a server and the staff computer in question had no backup systems, and, thus it had no way to recover the deleted e-mails. Under these circumstances, we find that the search for responsive e-mails conducted by the Carnegie Center employed methods that could have reasonably been expected to produce the records requested. We therefore conclude that the Carnegie Center satisfied its statutory burden of proof by documenting what efforts were made to locate and retrieve the records sought by Mr. Wilson, and that its search for those records was adequate under the standard articulated in 95-ORD-96, above.
The Carnegie Center advised that the deleted e-mails were of a preliminary nature and indicated that the deleted e-mails fell within the records retention schedule series for general correspondence. The two retrieved e-mails the Carnegie Center retrieved and enclosed with its letter to this office were of this sort. They were e-mails from Emily Webb to Delois Mitchell, CNCS State Office, concerning "Aaron Wilson Start Date." The Carnegie Center further advised that no e-mails were deleted after receiving notice that Mr. Wilson had requested or intended to request e-mails.
Records Retention Schedule -- Lexington/Fayette Urban County Government -- Common Records, General Correspondence, Series L5450, a copy of which is attached, requires that general correspondence be retained for two years. In his letter of appeal, Mr. Wilson stated that the e-mails would date back to February 2006. Because some of the e-mails at issue were deleted and not retained for a period of two years, the Carnegie Center may have engaged in improper records management. The Carnegie Center has an obligation relative to proper records management and retention. KRS 61.8715 provides:
[T]o ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of . . . [KRS 61.870, et seq., the Kentucky Open Records Act, KRS 171.410 to 171.740, relating to public records management, and KRS 61.940 to 61.959, relating to strategic planning for computerized information systems.]
The General Assembly has thus recognized an "essential relationship" between the intent of the Open Records Act and statutes relating to proper records management and maintenance. KRS 61.8715. Because records management issues are raised, we have referred this matter to the Department for Libraries and Archives for additional inquiries as the Department deems appropriate.
Mr. Wilson argues that pursuant to KRS 61.878(3) he is entitled to the requested e-mails even if they are preliminary in nature and exempt from disclosure under KRS 61.878(1)(i) and (j), because he is a "public employee." KRS 61.878(3) provides:
No exemption of this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency. (Emphasis added).
By virtue of this provision, if Mr. Wilson qualified as a "public agency employee" under KRS 61.878(3), he would be vested with a broader right of access to records relating to him than the general public has to the same records. Records that would otherwise be shielded from disclosure as preliminary drafts or notes pursuant to KRS 61.878(1)(i) , or preliminary recommendations and memoranda in which opinions are expressed pursuant to KRS 61.878(1)(j), as to third persons, would be accessible by Mr. Wilson if those records relate to him. 06-ORD-083. The Carnegie Center advised that Mr. Wilson is an AmeriCorps Vista Volunteer and the Carnegie Center has a memorandum of understanding with Vista which it oversees the placement of 20 volunteers in 13 local agencies. This oversight authority by the Carnegie Center may be a sufficient nexus for Mr. Wilson to qualify for the status of "public agency employee," and the application of KRS 61.878(3). However, it is unnecessary for us to resolve this issue here. The fact of the matter is that Mr. Wilson was not denied access to these e-mails. The Carnegie Center provided all the e-mails it had or was able to recover that were responsive to his request.
Finally, Mr. Wilson asserts that the Carnegie Center is not in compliance with rules and regulations which conform to the Open Records Act, and display them in a prominent location which is accessible to the public. KRS 61.876(1) provides:
Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
The Carnegie Center stated that it is in compliance with KRS 61.876 and has posted the Notice regarding the inspection of the public records. The Attorney General is not, in general, equipped to resolve a factual dispute of this nature, and we respectfully decline to do so. However, the copy of the notice utilized by the Lexington-Fayette Urban County Government, a copy of which the Carnegie Center furnished to this office is deficient, in that it does not identify its records custodian by title and address. If it has not already done so, the Carnegie Center should make certain that its Notice complies with KRS 61.876(1) and that it is displayed in a prominent location which is accessible to the public.
After Mr. Wilson submitted his July 4, 2006, letter of appeal, he attempted in a letter dated July 29, 2006, to modify his appeal and raise an additional issue that the Carnegie Center had wrongly redacted certain information from the personnel file of Rachel Noble when he inspected the record subsequent to the filing of the instant appeal. Because the Carnegie Center has had no opportunity to respond to this new argument, we conclude that this issue is not ripe for adjudication and will not be addressed in this appeal. 01-ORD-17.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.